Tuesday 22 March 2011 02.55 EDT
First published on Tuesday 22 March 2011 02.55 EDT

This week the legality of the Digital Economy Act (DEA) will be challenged in a judicial review brought by two major internet service providers (ISPs), BT and TalkTalk. Some background may help to explain its aims and why these are controversial.

Last year, lawyers for a company called MediaCAT sent out many thousands of letters to people claiming to have proof they had been illegally sharing films on the internet. MediaCAT located IP addresses from which they claimed the films had been shared: the point at which the computer uploading the film was connected to the internet. They then found the internet account holders and accused them of infringing.

This caused great distress to many apparently innocent people who had never heard of the films in question but had suddenly received demands for large sums in compensation coupled with threats of legal action.

MediaCAT threw spotlight on filesharing evidence

MediaCAT's campaign became unstuck in court last month, in part because legal liability for copyright infringement rests on a person, not a computer. In order to successfully sue someone for copyright infringement, you need to find the person who did it, not just an IP address.

A large proportion of domestic IP addresses will identify only an internet router within a household. Several computers operated by different household members may connect to it. Moreover, a wireless router with a typical range of a few tens of metres may be accessible to third parties surreptitiously 'piggy-backing' onto it, depending upon both the security level at the router and the technical skills of that third party.

Identifying an IP address therefore does not necessarily identify the person responsible for uploading content that infringes copyright. (Similarly, a speed camera may identify a speeding vehicle, and DVLA records can then reveal the owner of the vehicle – but the person liable for a speeding offence is the driver, not the owner).

The law is of course not powerless to resolve such situations. In the speeding case, a notice is sent to the vehicle owner imposing a legal obligation to assist in identifying the driver, who is then prosecuted. In a civil case, copyright owners can obtain a court order to compel ISPs to disclose the names and addresses of account holders using IP addresses from which material infringing copyright has been offered for upload.

A problem of indentification

But copyright owners have difficulty with the next necessary step, identifying the actual infringer or somebody who is liable for 'authorising' an act of infringement. Authorising somebody else to use an internet connection does not necessarily mean authorising their subsequent infringing acts, such as uploading a film.

Also, failing to protect an internet connection with a password does not even mean one has authorised a piggy-backer's access to the connection, still less authorised what is surreptitiously done with it.

MediaCAT's lawyers failed to distinguish between these situations and instead simply demanded compensation from IP account holders. The judge was damning in his criticism of their lawyer's letter writing (and revenue generating) exercise.

Nonetheless, that case highlighted a real problem.

If it is possible that the actual copyright infringer was an unauthorised piggy-backer, the copyright owner can find the broadband account holder but may be unable to prove that he was the copyright infringer (even if he was). Without such proof, copyright owners such as music labels and film companies are unable to pursue those illegally sharing files.

The DEA would assist copyright owners. It would, if upheld, mean that the ISPs could ultimately be required to cut off a customer's IP address, suspending their broadband connection, if that IP address was being used for copyright infringement.

Broadband account holders could avoid such measures if they could show that they were not copyright infringers and that they took reasonable steps to avoid its use for infringement by others. But they could not simply ignore the problem.

Some hope for embattled Digital Economy Act

The DEA would oblige ISPs to take action if they received 'copyright infringement reports' from copyright owners alleging that illegal downloading appeared to have taken place at a certain IP address. Initially, the ISP would not be obliged to hand over to the copyright owner the subscriber's name and address. The ISP would, however, be required to warn the subscriber of the allegation of copyright infringement, and advise them on how to protect their IP address. There is therefore some stress on education, and initially on privacy.

Moreover, ISPs would be required to keep lists of the IP addresses relating to broadband subscribers who had exceeded a certain number of alleged copyright offences, and to provide this list (initially in anonymised form) to copyright owners on request.

Thus the DEA does provide a framework which overcomes some of the problems in policing, proving and preventing copyright infringement via the internet, including those identified in the MediaCAT case.

The ISPs object to all this, on both cost and policy grounds. They raise privacy and confidentiality concerns. The ISPs claim that they perform a merely passive role, as a pure conduit for communications data, and should have no concern with its content. (But industry watchers may feel these lofty claims sit uneasily with their preparedness to accept advertising revenue generated through 'deep packet inspection', e.g. through Phorm).

The ISPs also raise concerns that they might be held responsible by broadband subscribers for privacy breaches, or for cutting off connections. But a positive benefit to them of the DEA is that they could respond to any criticism of their actions by explaining that they were merely complying with their legal obligations. Indeed ISPs have already been subjected to court orders (including orders obtained by MediaCAT) requiring them to disclose broadband subscribers' identities, and have duly complied.

Uncertainty ahead

The question to be determined during this week's judicial review will, in essence, be whether the measures contained in the DEA are consistent with EU telecoms laws, and proportionate to the problem of net piracy.

If the DEA survives judicial review, however, the greater test may yet be to come.

Will its powers be invoked by copyright owners whose primary motivation is to prevent illegal downloads, or will opportunists like MediaCAT find ways to exploit them for short term financial gain and thus bring down public opprobrium onto the DEA and its objectives?

Guy Burkill QC is one of the UK's leading patent barristers, with particular expertise in telecoms-related and electronics patents.